• Today
    September 19

  • 03:51 PM

EVERYDAY LAW: Rules versus religious freedom

Cecil McCarthy,

Added 21 January 2015

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A FEW YEARS AGO a ban was imposed on five students at the Samuel Jackman Prescod Polyclinic for wearing dreadlocks.  

I was surprised then because I had assumed that dreadlocks were accepted at the tertiary level of education as a hairstyle whether based on religious grounds or not. However, the issue of the legality of the ban is a separate one from that of its cultural appropriateness.

The fact that letters were sought from the five young men demonstrating that their hairstyles were grounded in the practice of their religion, was in my view a recognition that the ban could be viewed as interfering with their constitutional right to practise their religion. For it is often on this basis that school rules affecting dress or hairstyles have been struck down in other countries.

The issue that has arisen with respect to the hairstyles of two students at Harrison College has as much to do with changing norms in society as it is to do with the important function of the school in setting standards of dress and deportment.

Rules relating to hairstyles traditionally have been seen as part of the exercise of a school’s responsibility for discipline. An example of the exercise of the power to regulate dress is the English case of Spiers v Warrington Corporation (1954) where the Court of Queen’s Bench took the view that the power to regulate dress derived from the responsibility of the headteacher for discipline. In that case the articles of government provided that the headteacher “shall control the internal organisation management and discipline of the school . . .”.

Our education regulations provide that “subject to the policy of the minister and the general directions of the board, every headteacher is responsible for the discipline of the school”.

In the Spiers case, Eva Spiers was a student of a secondary school in Warrington. She had suffered several attacks of rheumatic fever. Her mother responded by sending her to school in slacks in order to keep her warm. The headmistress was not prepared to admit Eva to school unless she produced a medical certificate or would allow her to be examined by the school medical officer.  

Eva’s parents would agree to neither and persisted in sending her to school wearing slacks. On each occasion she appeared at school dressed in trousers, the headmistress refused to admit her. The matter was taken to court.

In handing down the decision in favour of the headteacher, Lord Goddard said: “The headmistress obviously has the right and the power to prescribe the discipline for the school, and saying that a girl must come to school not wearing a particular costume, unless there is a compelling reason of health, surely she is acting in a matter of discipline, and a matter which must be within the competence of the headmaster or headmistress of any school, whether it is one of the great public schools or a country secondary school or primary school.”

A modern example of the power to regulate dress is illustrated by a recent case decided by the House of Lords (Begum v Board of Governors of Denbigh High School 2006) in which the material facts were as follows:

A 14-year-old student, Shabina Begum, turned up for school wearing a jilbab (a long gown worn by women in some Muslim countries). She was sent home by the school authorities on the basis that she was not wearing the appropriate uniform.

Eighty per cent of the pupils of the school were Muslims. The school permitted its female pupils to wear a headscarf known as the hijab and a tunic with trousers (the shalwar kameeze). Shabina had accepted the dress code for two years. Through her solicitors, she challenged the decision of the headteacher and the board of governors not to admit her to school wearing the jilbab.

The judge at first instance ruled against her; the Court of Appeal ruled in her favour and House of Lords unanimously affirmed the decision of the judge.

Shabina had grounded her action in the European Convention on Human Rights. She said the decision not to admit her wearing the jilbab was unlawful because it infringed two of her Convention rights: the right to manifest her religion in practice and in observance, and the right not to “be denied the right to education”.

In delivering his judgement, Lord Scott commented on the lawfulness of the school’s insistence that Shabina should wear the school uniform in the context of domestic law. He observed:

“83. In my opinion, therefore, the direction to Shabina to attend school wearing the proper school uniform can only be attacked as an unlawful direction under domestic law if the school uniform rules that she was being required to obey, were themselves so unreasonable as to be unlawful, or if the decision to insist upon Shabina observing the school uniform rules was similarly unreasonable. I regard both contentions as being virtually unarguable.

“Schools are entitled to have school uniform rules for all the reasons so cogently expressed by Mrs Bevan . . . . The care taken by the school to try and ensure that the shalwar kameeze school uniform was acceptable for female Moslem pupils is impressive . . . .

“84. As to the school’s refusal to relax the uniform rules so as to allow Shabina to attend school wearing the jilbab, that too seems to me to have been well within the margin of discretion that must be allowed to the school’s managers. There is not much point in having a school uniform policy if individual pupils can decide for themselves what they will wear. I conclude that the decisions taken by the school with regard to Shabina were unimpeachable by the standards of ordinary domestic law.”

It seems to me that the principal of Harrison College, as part of the exercise of her responsibility for discipline, can impose rules with respect to hairstyles. Provided those rules are reasonable, and do not infringe religious freedom, it seems to me that they are lawful and enforceable.

Rules should always take in account the religious and cultural identity of the students. It is for this reason that some students are permitted to wear a modified version of the school uniform. However, consideration should also be given to the fact that at a secondary school, standards of dress and deportment will necessarily be more conservative than at the tertiary level. Sometimes there is a fine line between observing reasonable rules and inhibiting the cultural expression of students.

In the end, it seems to me that it is the principal’s call as to what is appropriate, having regard to the rules set out and communicated to the students.

Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com

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